Federal appeals court orders EPA to ban controversial pesticide

Brady Dennis

Posted:
08/09/2018 10:43:53 PM MDT

A federal appeals court on Thursday ordered the Environmental Protection Agency to ban the controversial pesticide chlorpyrifos, which former administrator Scott Pruitt had refused to do last year, despite mounting concerns about its risks to human health.

In a 2-to-1 decision, the U.S. Court of Appeals for the 9th Circuit said that federal law requires that the EPA ban the use of a pesticide on food if it finds any harm from exposure to it, saying that there was "no justification" for Pruitt's decision to allow farmers to continue to use chlorpyrifos "in the fact of scientific evidence that its residue on food causes neurodevelopmental damage to children."

Judge Jed Rakoff, writing for the majority, said that over the past two decades, scientists at the agency had documented the likely adverse effects of chlorpyrifos on the mental and physical development of infants and children. But he said the EPA had "stalled" for years in banning the chemical and accused the agency of an "utter failure" in responding to objections over Pruitt's denial last year.

"The time has come to put a stop to this patent evasion," wrote Rakoff, who gave the EPA 60 days to comply with the order.

Environmental advocates swiftly praised the decision as a major – and overdue – victory for public health.

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"This court decision not only protects the health of children and farmworkers, it also affirms EPA's duty to actually protect public health," Kristin Schafer said in a statement. Schafer is executive director of the Pesticide Action Network North America, which was a party to the case alongside other labor, environmental and health groups. "Under this administration, apparently, it takes judges to force our public agencies to stand up to corporate interests and do their jobs."

However, by Thursday afternoon, the EPA – now under the leadership of acting administrator Andrew Wheeler – had not committed to what action it would take.

"EPA is reviewing the decision," agency spokesman Michael Abboud said in a statement, adding that epidemiological data from Columbia University that partly was used to support a ban "remains inaccessible and has hindered the agency's ongoing process to fully evaluate the pesticide using the best available, transparent science."

The chemical compound chlorpyrifos, also known as Lorsban, has been used by farmers for more than a half-century to kill pests on a broad range of crops. The EPA long ago banned its spraying indoors to combat household bugs, but only in recent years did the agency seek to ban its use in agriculture, after mounting scientific evidence that prenatal exposure can pose risks to fetal brain and nervous-system development.

Under President Barack Obama, the EPA in 2015 proposed revoking all uses of chlorpyrifos on food. That move came in response to a petition filed by the Natural Resources Defense Council and Pesticide Action Network North America. A federal judge had given the EPA until late March 2017 to decide whether to finalize its ban of the pesticide.

"We need to provide regulatory certainty to the thousands of American farms that rely on chlorpyrifos, while still protecting human health and the environment," Pruitt said then. "By reversing the previous administration's steps to ban one of the most widely used pesticides in the world, we are returning to using sound science in decision-making – rather than predetermined results."

His statement argued that the "public record lays out serious scientific concerns and substantive process gaps in the proposal" – specifically, he noted that the Agriculture Department had raised concerns about the methodology EPA scientists had used.

Sheryl Kunickis, director of the Office of Pest Management Policy at the USDA, agreed with the decision at the time, saying it would allow "this important pest management tool [to] remain available to growers, helping to ensure an abundant and affordable food supply for this nation and the world."

The chemical industry also has resisted a ban on chlorpyrifos. Dow AgroSciences, which manufactures the pesticide, said in late 2016 that the Obama administration's assessment of its safety "lacks scientific rigor." The company added that it "remains confident that authorized uses of chlorpyrifos products, as directed, offer wide margins of protection for human health and safety."

"Chlorpyrifos is a critical pest management tool used by growers around the world to manage a large number of pests, and regulatory bodies in 79 countries have looked at the science, carefully evaluated the product and its significant benefits and continued to approve its use," Gregg Schmidt, a spokesman for DowDupont, said in a statement Thursday, adding that the company expects "that all appellate options to challenge the majority's decision will be considered. We will continue to support the growers who need this important product."

In Thursday's decision, Rakoff agreed with environmental and health groups that EPA could not continue to allow the current uses of chlorpyrifos based on a need to conduct more scientific research, given that two decades of studies had not yet been able to determine with "reasonable certainty" that the chemical is safe.

"The EPA presents no arguments in defense of its decision," he wrote. "Accordingly, the EPA has forfeited any merits-based argument."

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